Court Holds City’s Policy is Unconstitutional

In a case that may have an impact on many municipalities around Maine, the Superior Court has held that the City of South Portland’s personnel policy prohibiting city employees from seeking or accepting nomination or election to the school board is unconstitutional. The case, Callaghan v. City of South Portland, CUMSC-CV-11-428 (Me. Super. Ct., Cum. Cty., April 17, 2012) (Warren, J.) does not appear to have been appealed to the Maine Supreme Judicial Court.

South Portland adopted a policy prohibiting city employees from seeking or accepting nomination or election to any South Portland elective office, including the city council and school board. The city also adopted other restrictions on campaigning and soliciting contributions. The policy did not apply to school department employees because they are under the direction of the school superintendent. The city told two city employees, one who wished to take out nomination papers and one who sought reelection to the school board, that they could not serve both as an employee of the city and on the school board.

The employees challenged the policy in the Superior Court. The court examined the relationship between the city and the school board, including operational, budgeting and disciplinary process concerns offered by the city to justify the policy. The court noted that the city manager has no supervisory authority over school board members acting in their school board capacity, but that the city manager could be involved in a grievance process brought against a city employee who is on the school board.

The court held that the justifications offered by the city did not outweigh the First Amendment rights of city employees who wished to be involved as candidates in non-partisan school board elections, or who merely sought to engage in campaign activity in connection with those elections. However, the court also found that the city could enforce other prohibitions in its policy, including:

• prohibiting employees from using “the influence of his or her employment capacity” for or against any candidate for the school board;

• prohibiting the use of city facilities, equipment or supplies in connection with any election for the school board; and

• prohibiting any politicking during an employee’s working hours.

Notably, the court did not address the prohibition in South Portland’s policy that prohibits city employees from running for the city council, leaving that question for another day.

Although this case does not appear to have been appealed, it provides a good opportunity to review municipal ordinances and employee personnel policies that may prohibit certain political activities.